Defamation Law isn’t Being Misused. It’s Doing its Job.

Yet another journalist has been slapped with a defamation case. This time, it is Ravi Nair, a relentless critic of the Adani Group. Infamously, the Group habitually and relentlessly tackles this critique through coercive legal action. This ceremonious encounter has led to a 1 year jail sentence, and a fine of Rs. 5000. Multiple FIRs by the same Group are still pending against Nair. 

Strategic (mis)use of criminal defamation is nothing new, and is a defining feature of India’s declining freedom of speech landscape. But to view the Nair case as merely as an instance of misuse is to miss the point. It brings out fundamental issues in the legal architecture of defamation that make the misuse inevitable, and simultaneously, pierces the very rationale justifying its continued use. Primarily, extending the definition of reputation to protect a company, undermines the dignity-based framework that is fashioned to justify the retention of defamation as a criminal offence.  

Do Companies Require Criminal Law to Save them?

Any law can operate only within the parameters of precise definition. The law for defamation, therefore, relies on defining and protecting a concept as elusive as reputation. To do this, Section 356 of the Bhartiya Nyaya Sanhita, 2023 defines defamation as any spoken or written imputation that harms, or is likely to harm, reputation. However, in its attempt to pin down reputation, the provision relies on vague phrases like “moral character” and “credit”. It is, further, aided by a complex structure of 4 Explanations, 10 Exceptions, and 15 Illustrations to surmount the insurmountable. It still does not answer the underlying  question– what are we trying to protect when we try to protect reputation.

The ambiguity surrounding its notion, is exacerbated by Explanation 2 of Section 356 that extends protection against reputational harm to companies. In doing so, the law expands the definition of reputational harm, treating the inherent dignity a person holds, equivalent to the commercial value associated with corporate reputation. 

It conflates the distinct conceptions of reputation into the same category– property that is acquired through exertion of labour and determined through market value, dignity that is self-respect, and honour that one possesses because of societal standing. This conflation is not a minor doctrinal stretch as it destabilises the very justification for criminal defamation. In Subramaniam Swamy v. Union of India, its retention was justified as a reasonable restriction on free speech under Article 19(2), on the ground that it protects reputation as an aspect of individual dignity. An artificial person, however, lacks dignity in this sense, and rescuing its interests cannot justify the State’s coercive intervention. 

Arguably, reputation for corporations is an integral asset. But, the harm faced by them is purely commercial in nature, relating to the protection of the value of property rather than the value of life and liberty. This conception of reputation is one of the most tangible forms, formulated by measurable, and clear elements such as stakeholder trust and market response, and typically remediable through civil means. By remaining stuck to an incoherent provision, the law fails to adequately and proportionately address the harm, and instead relies on the burden of the criminal process to silence, intimidate, and punish. 

What Possibly Could Have Been

Bringing commercial value under the fold of reputation was, perhaps, not the intent behind the provision. The original draft of the IPC makes no explicit reference to corporations as victims of defamation. It rather relies on individual action, even when dealing with group imputations, and frames reputational harm in commercial terms only in relation to individuals engaged in trade. Importantly, this framing did not arm resource-rich collections –companies– with the criminal process against their critics.

During the deliberation of the draft, there was a recognition that true statements that defame a person’s reputation may produce greater public benefit than harm, as they often propel accountability and change of behaviour of the subject. There was also an awareness of India’s diversity, and an acknowledgement that the meaning and impact of words can vary widely across audiences. Defamatory speech, through these discussions, was never imagined to be studied in isolation, but was meant to be understood within its broader context.

The law that was enacted, however, significantly departed from this understanding, and deliberately so. It abandoned both the emphasis on individual harm and sensitivity to context, crafting a colonial instrument of control that is now wielded by a new class of powerful actors.

Lower Thresholds, Higher Consequences

This sets Section 356 distinct from other slander and libel regulations, as it does not confine to only false statements. It shifts the burden onto the accused to justify their speech under the narrow exception of truth revealed for “public good”. Thus, the complainant is not required to demonstrate that speech did indeed wantonly attack and harm their reputation. Instead, it is reduced to parsing of isolated words, with little room to account for context, intent, tone, or audience. Such rigidity overlooks the fluid nature of words, where meaning emerges from their reception, and is not curtailed to their expression. 

A threshold that limits itself to perceived effect of such speech by the subject, makes criminal defamation an especially convenient tool against those whose roles require them to speak critically – journalists, politicians, women and other gender minorities speaking against sexual harassment, and increasingly, comedians. The nature of such speech is rarely neat, and may at times involve jabs that lower the character of the subject. But it is mostly sharp, satirical, exaggerated, and inconvenient; and intended to be precisely that, in service of the roles and the audience they hold. It is these very qualities that render such speech vulnerable to criminal action. 

The culmination is a regressive criminal defamation regime where criminal prosecution can be triggered with relative ease, and this chilling fear is sufficient to censor a broad spectrum of legitimate expression. The Nair case, therefore, is not a digression, but a predictable consequence of the law’s design.

Rethinking Criminal Defamation 

These questions were left unexamined in Subramaniam Swamy. In its focus on balancing the right of freedom of speech and dignity, the court missed the opportunity to interrogate the internal architecture of the offence and the disproportionate consequences that flow from its design. Therefore, these critical questions– extending protection to corporate interests, and enabling the criminal process in the absence of demonstrable injury, did not inform its reasoning. This evasion permits the provision to operate in ways that depart from the very balance the Court sought to preserve. Rather, it tilts decisively in favour of suppression, weaponising state power to silence expression.

The problems with the design of criminal defamation do not end here. But any deeper re-examination of the provision, its scope, purpose and continued legitimacy, must also reckon with the place it occupies in the ballooned landscape of speech regulation. This is not just pertinent to resolve evident first principles concerns of identifying actual harm and addressing it with proportionate remedies; it is paramount to resist a legal order that in its attempt to be a custodian of decency, silences the already weak.  

(Image: The Yellow Press, illustration from 1910 depicting William Randolph Hearst as a jester tossing newspapers with headlines such as 'Appeals to Passion, Venom, Sensationalism, Attacks on Honest Officials, Strife, Distorted News, Personal Grievance, [and] Misrepresentation' to a crowd of eager readers — Source)